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  • 2013年德国海事仲裁协会仲裁规则(英译本)
    作者:德国海事… 文章来源:德国海事仲裁协会(GMAA) 更新时间:2013-12-2 10:39:55

       

    Translation of the GMAA Arbitration Rules

    (In case of doubt, the German version prevails.)

    Version 2013 - valid as per 1.1.2013

    INDEX


    § 1 Scope of Application
    § 2 Choice of Arbitrators
    § 3 Number of Arbitrators
    § 4 Appointment of Arbitrators
    § 4 a Multi-Party Disputes
    § 4 b Company Disputes
    § 4 c Further independent appointments of Arbitrators
    § 5 Duties of the Arbitrators
    § 6 Challenging an Arbitrator
    § 7 Costs of the Arbitration Proceedings
    § 8 Place of Arbitration, Registration of the Proceedings
    § 9 Institution of Proceeding
    § 10 Procedural Principles
    § 11 Arbitral Proceedings
    § 12 Applicable Law
    § 13 Arbitral Settlement
    § 14 Award
    § 15 Service and Competent State Court
     

    § 1 Scope of Application

     

    1. Where the parties to a contract have agreed that disputes between them shall be resolved in accordance with the rules of the German Maritime Arbitration Association (GMAA), these rules shall apply in the version in force at the time arbitration proceedings are commenced.
    2. The parties may amend or supplement these rules for the purpose of an individual dispute. In the event, however, that arbitrators have already been appointed, such amendments or supplements shall be allowed only with the consent of the arbitrators.

    § 2 Choice of Arbitrators

     

    1. The parties are free in their choice of arbitrators, unless they have agreed in the arbitration agreement upon the person or particular qualifications of the arbitrator to be appointed.
    2. A person who has acted as conciliator, mediator or in a similar function in the same matter shall not be appointed as arbitrator.
    3. At the request of a party the Chairman of the Board of the GMAA shall propose arbitrators for appointment.

    § 3 Number of Arbitrators

     

    The arbitral tribunal shall consist of two arbitrators unless the parties have agreed that it shall consist of three arbitrators or a single arbitrator.

     

    § 4 Appointment of Arbitrators

    1. If the arbitral tribunal is to consist of two arbitrators, each party shall appoint one arbitrator. If the two arbitrators cannot agree on a decision in the proceedings they shall forthwith appoint a third arbitrator as umpire.
    2. If the arbitral tribunal is to consist of three arbitrators, each party shall appoint one arbitrator. The two arbitrators shall forthwith appoint the third arbitrator as chairman.
    3. If a party fails to appoint an arbitrator within two weeks after being requested to do so by letter, telefax message or e-mail by the other party, the Chairman of the Board of GMAA or his substitute shall appoint the arbitrator at the request of the other party. The aforegoing sentence shall apply correspondingly in respect of the appointment of a substitute arbitrator.
    4. Where sub-par. 1, sentence 2 or sub-par. 2, sentence 2, above applies, if the two arbitrators cannot agree forthwith on the appointment of a third arbitrator, the Chairman of the Board of GMAA or his substitute shall appoint the third arbitrator at the request of either party. The same shall apply if the parties, having agreed on a single arbitrator, cannot agree on the appointment of such arbitrator.
    5. The appointment of an arbitrator or chairman becomes valid upon his agreement and the notification of such appointment to the parties.

    § 4a Multi-Party Disputes

     

    1. Unless the parties have agreed otherwise, two or more claimants are jointly to appoint one arbitrator when commencing arbitration proceedings.
    2. If the arbitration proceedings were instituted against two or more respondents then, unless otherwise agreed between the parties, the respondents are to jointly appoint one arbitrator within a time limit of four weeks counting from service on the respondents of the request by letter, fax message or e-mail. If the request to appoint has been served on the respondents at different times, the time limit starts to run from the latest service. The time may be extended by Chairman of the Board of GMAA or his substitute. If the parties fail to agree within the given time, the Chairman of the Board of GMAA or his substitute shall, upon hearing the parties, appoint two arbitrators, unless the parties agree otherwise. Such appointment shall replace an appointment by the claimants. This shall not affect the commencement of the arbitration proceedings.
    3. The tribunal decides upon the admissibility of multi-party proceedings.

    § 4 b  Company Disputes

     

    1. In the event of a dispute between a company and its shareholders, its organs and/or members of such organs as well as in the event of disputes amongst shareholders, organs and members of such organs the tribunal is constituted by the Chairman of the Board of the GMAA or his substitute appointing two arbitrators upon the claimant's application.
    2. The tribunal instructs the company to notify those shareholders and organs of the company not yet party to the proceedings about the commencement and progress of the arbitration.
    3. The company, its shareholders, its organs and/or members of such organs are entitled to join the arbitration proceedings as intervenor by declaration to the tribunal by letter, telefax message or e-mail provided they have a legitimate interest in the outcome of the proceedings.
    4. The same tribunal is competent in respect of further disputes regarding the same subject matter or resolution in dispute. In company disputes pending before a state court the company, its shareholders and the company organs are under an obligation to object to the jurisdiction of the court on the basis that an arbitration agreement exists.
    5. § 4a sub-par. 3 applies accordingly.

    § 4 c  Further independent appointments of Arbitrators

     

    The Chairman of the Board of the GMAA or his substitute may appoint two arbitrators in respect of other disputes upon application of the claimant, if so agreed by the parties.

     

    § 5 Duties of the Arbitrators

     

    1. Every arbitrator has a duty of impartiality and confidentiality.
    2. The arbitrators shall conduct the proceedings – within the limits of the applications of the parties - expeditiously and bring them to an end within a reasonable period of time.
    3. The arbitrators shall preserve the files of the tribunal for five years after termination of the proceeding pursuant to § 11 sub-par. 8.
    4. An arbitrator shall not be liable with respect to his decisions, except that he may be liable for the consequences of his deliberate breach of duty in such respect.
    5. With respect to any other act or omission in connection with an arbitration, an arbitrator shall only be liable for the consequences of his gross negligence or his deliberate breach of duty.

    § 6 Challenging an Arbitrator

     

    1. Any arbitrator may be challenged by a party in the event

    1. that a state judge is precluded by law from the performance of his judicial office, or
    2. if circumstances exist which raise justified doubts as to his impartiality or independence, or
    3. if he does not fulfil the criteria agreed between the parties, or
    4. if he improperly delays the performance of his arbitral duties.

     

    1. Each arbitrator shall disclose to the parties all circumstances that might justify his challenge at any stage of the proceedings.
    2. A party may only challenge the arbitrator appointed by him for reasons of which he became aware after his appointment. A party who intends to challenge an arbitrator must expose the reasons for his challenge within two weeks after becoming aware of them. A party shall lose the right to challenge an arbitrator once it has taken part in a hearing or made applications without challenging the arbitrator for reasons already known to him. A party shall serve his challenge on the other party and the arbitral tribunal.
    3. Unless within one week after receipt of the challenge the other party approves the challenge or the challenged arbitrator resigns from his appointment as arbitrator, the issue shall be decided by the court of appeal (Oberlandesgericht) which has jurisdiction over the place of arbitration. The matter shall be referred to the said court of appeal within two weeks after receipt, by the other party and the tribunal, of the challenge.
    4. While the challenge is pending, the arbitral tribunal, including the challenged arbitrator, shall be entitled to proceed with a hearing or the arbitral proceedings and render its award.
    5. Should the other party approve the challenge or should the arbitrator terminate his mandate after having been challenged or such challenge be allowed by a final state court ruling, the arbitrator shall be excluded from his mandate. The party who appointed him or could have done so shall appoint another arbitrator, or the two arbitrators shall appoint another umpire. § 4 sub-par. 3 and 4 shall apply mutatis mutandis.
    6. An arbitrator who has been successfully challenged loses his right to remuneration and shall reimburse without delay any payments already received in accordance with § 7 (2), except if he had no influence over the reason for the successful challenge.

       

    7.  § 7 Costs of the Arbitration Proceedings

     

    1. The arbitral tribunal is entitled to remuneration (fees, reimbursement of expenses and value added tax) for which the parties are jointly and severally liable.
    2. In respect of such remuneration, the GMAA Rules on the Remuneration of the arbitral tribunal shall apply. Upon submission of the arbitration claim the tribunal may ask the parties for security for their anticipated remuneration (including expenses). Instead of security for costs the tribunal is entitled to ask for a payment on account of the remuneration, provided all arbitrators agree. The tribunal shall ask the claimants and respondents respectively for payment of one half of the security for costs or the on account payment. The tribunal can make the continuation of the proceedings conditional upon effecting the provision of security or the payment on account.
    3. Upon a party's application, it shall lie within the arbitral tribunal's reasonable discretion whether to order a foreign claimant or counterclaimant to provide security for costs in the proceedings.
    4. Each party shall, to the extent they are unsuccessful, bear the remuneration of the arbitrators as well as costs and expenses incurred by arbitrators and shall reimburse the other party in respect of its costs and expenses, provided that such costs and expenses were necessary in order to appropriately pursue or defend the claim. Fees of a representative appearing on behalf of a party in the proceedings shall only be recoverable up to the amount fixed in the Law on the Remuneration of Lawyers (RVG) in respect of appellate proceedings. The tribunal decides in its equitable discretion on the costs of an intervention.

     § 8 Place of Arbitration, Registration of the Proceedings

     

    1. Unless the parties have agreed upon the place of arbitration, the arbitral tribunal shall fix either Hamburg or Bremen as place of arbitration.
    2. The arbitral tribunal shall inform the secretary of the GMAA of all arbitration proceedings commenced before them and of their termination.The arbitral tribunal shall provide the secretary with a copy in anonymous form of each award or order by which the proceedings are terminated in accordance with § 11 sub-par. 8.

     

    § 9 Institution of Proceedings

     

    1. The arbitral proceedings are commenced when the respondent receives from the claimant by letter, fax message or e-mail notice of the appointment of the arbitrator. This appointment shall include the name of the parties, if possible addresses, and the description of the subject-matter of the dispute.
    2. Unless otherwise stipulated in the arbitration clause, arbitration proceedings in disputes pursuant to § 4b or § 4c are instituted upon receipt of the application by letter, telefax message or e-mail to the Chairman of the Board of the GMAA to appoint two arbitrators . Sub-para. 1, second sentence, applies mutatis mutandis to the application.

    § 10 Procedural Principles

     

    1. The arbitral tribunal shall have the power to decide whether the arbitration agreement is valid, whether the tribunal is properly constituted and whether it has jurisdiction with respect to the dispute. If a party challenges the jurisdiction of the arbitral tribunal, the tribunal may decide by interim award whether it has jurisdiction; an appeal to the state court against such interim award shall not suspend the arbitral proceedings.
    2. The tribunal shall hold an oral hearing, unless both parties have agreed on a documents-only arbitration.
    3. The arbitral tribunal shall aim to ensure that the applications of the parties serve the proper resolution of the dispute.
    4. The arbitral tribunal shall grant the parties at every stage of the proceedings a sufficient opportunity to be heard. The arbitral tribunal may in this respect make comments on matters of fact or law and in particular it shall mention points of view which appear to have been overlooked.
    5. The tribunal shall give the parties sufficient time to make statements and comply with its orders.
    6. Where a party does not make a statement or comply with an order within the time fixed by the tribunal, such default shall not be automatically deemed to be an admission of the factual allegations of the other party. The arbitral tribunal shall make such inferences from a party's default as it considers appropriate.

    § 11 Arbitral Proceedings

     

    1. The arbitral tribunal shall investigate the facts submitted by the parties as far as it deems necessary. For this purpose it may issue orders to the parties, summon and hear witnesses, appoint experts and demand the presentation of documents and other matters of relevance as evidence. The tribunal is not bound by the parties' offers to produce evidence. One arbitrator shall minute each hearing and forward the minutes to the parties.
    2. The record of the hearing of evidence shall be dictated in the presence of the parties.
    3. The arbitral proceedings shall be conducted in German, unless the tribunal orders that proceedings be conducted in English. Other languages may only be used with the consent of the tribunal and the parties.
    4. The statement of claim and summonses shall be served on the parties by means which enable receipt to be proven, unless the parties have agreed on a different manner of service.
    5. The parties shall serve all pleadings and other statements on each other in duplicate and an additional copy on each arbitrator.
    6. Each party may appoint a representative to appear in the proceedings on its behalf.
    7. The arbitral tribunal may order interim measures to secure evidence. It is not entitled to order other interim measures with regard to the matter in dispute.
    8. The arbitral proceedings are terminated by an award or by an order of the arbitral tribunal. The arbitral tribunal may by order terminate the arbitral proceedings if
    1. the claimant fails to present his statement of claim within the time limit agreed or set by the arbitral tribunal upon application of the respondent, or
    2. the claimant withdraws his claim unless the defendant objects thereto and the arbitral tribunal recognises a legitimate interest of the defendant in obtaining a final settlement of the dispute, or
    3. the parties agree on the termination of the arbitral proceedings, or
    4. the parties fail to pursue the arbitral proceedings notwithstanding having been requested to do so by the arbitral tribunal, or
    5. the continuation of the proceedings has for other reasons become impossible.

    1. Unless the parties have expressly agreed on different rules of procedure, chapter 10 of the German Civil Procedural Code shall apply.

    § 12 Applicable Law

     

    1. Unless the parties have expressly agreed on the application of a specific law, German law shall be deemed to have been chosen to apply, including to the agreement to arbitrate.
    2. The arbitral tribunal shall take into account the accepted customs of the trade.
    3. The arbitral tribunal may only decide on the basis of equitable principles (nach Billigkeit) if it has been expressly authorized by the parties to do so.

    § 13 Amicable Settlement

     

    1. At every stage of the proceedings, the arbitral tribunal shall consider the possibility of an amicable settlement of the dispute or of particular issues in dispute and - if it considers it expedient to do so - shall suggest such settlement to the parties.
    2. If, during the arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings by an order pursuant to § 11 sub-par. 8. If requested by the parties the arbitral tribunal shall record the settlement in the form of an arbitral award on agreed terms.

    § 14 Award

     

    1. The arbitral tribunal decides by majority of votes.
    2. The arbitral tribunal is not entitled to consult advisers.
    3. When rendering its award, the tribunal only considers remedies claimed by the parties.
    4. The arbitral award shall be rendered in writing and state the reasons upon which it is based. The following shall be included in the award:
        1. the names of the parties to the arbitral proceedings, including their addresses as well as, if applicable, names and addresses of their legal representatives
        2. the names of the arbitrators who render the award;
        3. the place of arbitration;
        4. the date of the written award;
        5. the decision;
        6. the facts of the dispute;
        7. the reasons on which the decision is based;
        8. the decision as to which party shall bear the costs of the arbitral proceedings in accordance with § 7 sub-par. 4;
        9. the signature of the arbitrators. Where the arbitral tribunal consists of more than two arbitrators and the signature of one arbitrator who voted on the award cannot be procured, the signature of the others shall be sufficient. The arbitrators who sign shall make a note under the award stating that the signature of the one arbitrator could not be procured.


    One original of the award shall be served on each party.

     

    1. Upon the application of a party, the arbitral tribunal shall decide in an additional award, which may be issued without a hearing, on the amount of costs to be borne by the parties and the reimbursement of same. Sub-par. 1 to 5 above shall apply mutatis mutandis.
    2. Unless a party objects, the arbitral tribunal shall be entitled to publish the award under the name of the vessel but without the names of the parties or other identifying details.

    § 15 Service and Competent State Court

     

    1. Service pursuant to the terms of these Arbitration Rules shall be effected by the bailiff or by means of registered letter with acknowledgement of receipt (Rückschein). If a document to be served is received by other means, it shall be deemed effectively served at the moment when it was actually received.
    2. If a party has appointed a representative in the proceedings, service shall be effected on that representative.
    3. Each arbitrator is authorized by the other arbitrators and empowered by the parties to effect service of documents including the award.
    4. The competent state court (§ 1062 ZPO) is the court of appeal (Oberlandesgericht) that has jurisdiction over the place of arbitration. For assistance in the taking of evidence and other judicial measures for which the arbitral tribunal lacks jurisdiction (§ 1050 ZPO) the competent state court is the local court (Amtsgericht), that has jurisdiction at the place of arbitration.

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